The Endangered Species Act: Does It Have a Stopping Point

In several recent decisions, the United States Supreme Court has held that Congress cannot use its Commerce Clause powers to regulate certain activities. In two of these cases, the Court found that Congress had exceeded the powers granted to it in the Constitution. In others, it managed to avoid such knotty constitutional questions through twists of statutory interpretation. In United States v. Lopez, for example, the Court held that the Gun-Free School Zones Act of 1990 exceeded the authority of Congress to regulate commerce. However, in Solid Waste Agency v. United States Army Corps of Engineers (“SWANCC”), the Court “avoid[ed] . . . significant constitutional and federalism questions” by rejecting the Corps’ attempt to use its power to promulgate regulations that extended the definition of “navigable waters” to include purely intrastate waters.